When faced with losing real estate, people often have to choose between doing a short sale and simply letting the bank foreclose.

Real estate brokers are pushing hard to have people do “short sales” on their properties, instead of allowing them to go to foreclosure.   In most circumstances, this is a very bad idea, particularly when there is a bankruptcy filing involved.

Short Sale To Stop Foreclosure

What is a short sale? A short sale occurs when you want to sell your property, but owe more to the lienholders (mortgages) on your property than a buyer is willing to pay to purchase the property. One (or more) of the lienholders secured by your property must agree to accept less than 100% of what is owed to them, in order to allow the sale to proceed.

But who does this benefit? Certainly the mortgage broker, because he/she gets their commission.

Historically, a short sale was used in these circumstances in return for an elimination of any obligation that the seller has and an agreement that no negative marks will appear on their credit report as a result. NEITHER of these is true today. I am seeing increasing numbers of people who do these short sales, and then the lienholder who didn’t get paid in full seeks to collect from the seller for the deficiency amount. On top of that, the short sale appears on the credit report in the form of a negative defaulted loan mark.

Furthermore, doing a short sale can sometimes affect the ability to relieve the seller of certain tax burdens if they subsequently file a bankruptcy case.

Foreclosure Sale as an Option

Compare this with the foreclosure process. You end up with the same liabilities and negative credit marks, but you can usually live rent-free in your home for months, if not years, while the lenders go through the foreclosure process.  Most lenders will wait as long as possible to foreclose in today’s market.

One downside to foreclosure, however, is one has no control over how quickly, or slowly, the lender will complete the sale.    Delays can cause a lot of problems, particularly for those living in condominiums which have Homeowner’s Association Dues.

See an Attorney for Advice

This is an extremely complicated area of law involving both tax and bankruptcy law, but suffice it to say that the optimal strategy is that if you are going to file a bankruptcy, it is usually best to allow your property to go to foreclosure, and file your case before the foreclosure sale takes place (and, even better, have the foreclosure sale occur DURING the bankruptcy, but this is difficult to achieve).

image courtesy of occupyfightsforeclosure